Nmalamuwomu v. Shadrack

Judgment
Question Presented
Whether the filing deadline for an election petition alleging vote buying made up to and on polling day runs for 21 days after the alleged payment,, or 21 days after the election result is released in the Official Gazette?.
Alleged Acts
The First Respondent allegedly spent money in the form of cash donations or donations in kind in exchange for votes from 22 January to 19 March 2020, contrary to section 61A of the Representation of the People Act defining vote buying as an election offence. These cash donations allegedly affected the outcome of the election held on 19 March 2020. Election results were published in the Official Gazette No. 26 on 8 April 2020.
Procedural history
Petitioner Nmalamuwomu (candidate for the People’s Services Party) challenged the election of First Respondent Shadrack (candidate for the Leaders Party of Vanuatu) as Member of Parliament for Malekula by filing a petition on 24 April, sixteen days after election results were posted in the Official Gazette No. 26. Respondents then filed a Strike-Out Application and sought summary dismissal of the petition, claiming that the petition was not filed in time according to subsection 57(2) of the Representation of the People Act, which defines the triggering event for filing petition – that is from maximum 21 days from the alleged payment of the bribes Subsection 57 of the Representation of the People Act reads that “Time for presentation of petitions (1) Subject to subsection (2) an election petition shall be presented within 21 days of the publication in the Gazette of the results of the election to which the petition relates. (2) If a petition alleges a specific payment of money or other reward after an election by or on the account of a person whose election is disputed, the petition may be presented within 21 days of the alleged payment; (3) The time limit provided for in this section shall not be extended." Article 54 of the Constitution of Vanuatu grants the Supreme Court jurisdiction over cases involving election disputes.
Summary
First Respondent Shadrack, a candidate for the Leaders Party of Vanuatu, allegedly spent money in the form of cash donations or donations in kind in exchange for votes from 22 January to 19 March 2020. Petitioner Nmalamuwomu, a candidate for the People’s Services Party, then challenged Respondent’s election. In his Strike-Out Application, Respondent argued that an election petition must be filed within 21 days of the last alleged payment according to subsection 57(2) of the Representation of the People Act; given that the last alleged payment was made on polling day, 19 March 2020, the deadline for filing an election petition was on 8 April 2020. The petition filed on 24 April 2020 would therefore be late and should be dismissed. Petitioner pointed to the text of subsection 57(2) and argued that the 21-day time limit after the alleged payment only applies to payments made “after an election.” Petitioner further argued that, given the alleged payments were made up to and including polling day, these alleged payments were not made after the election and the 21-day deadline countdown began when the election results were published in the Official Gazette. This would have set the deadline on 29 April 2020, so Petitioner’s 24 April 2020 filing would be within the time limits. The Court observed that Section 61A of the Representation of the People Act prohibits payments in the period from the end of Parliament up to and including polling day. However, a candidate could promise to make payments after the election in return for votes. The wording of subsection 57(2) therefore suggests that it is directed at such payments made after an election. The Court then noted that the alleged payments in this case were not made after the election, making subsection 57(2) inapplicable. With subsection 57(2) ruled out, the Court held that, in cases involving alleged payments made before and including polling day, the 21-day deadline set by subsection 57(1) applies. Petitioner had 21 days after the results were published in the Official Gazette No. 26 on 8 April 2020 to file an election petition. Petitioner filed on 24 April 2020. This rendered Respondents’ Strike-Out Application claiming that the petition was not filed in time unlawful.
Conclusion
The payments of vote buying alleged in this Petition were all made in the period up to and including the polling day. Decision found petition could be made up to 21 days after gazettal of election result as included allegations of payments after election. Respondents’ Strike-Out Application was dismissed. At the Petition Hearing on 29 June 2020, the Court hfound no violation of Section 61A of the Representation of the People Act and dismissed the election petition.
Legal Issue(s)
  • Deadline(s)
  • Disputing Results
  • Electoral Integrity
Applicable Law(s)
Sections 57, 61, and 61A of the Representation of the People Act
Region
Asia-Pacific
Country
Vanuatu
Court
Supreme Court
Election Type
Parliamentary
Date of decision
Jun 24, 2020
Geolocation

Latitude: -17.762092393066474

Longitude: 168.32153320312503

Geolocation